Future Of Health Care Law Hangs In Balance

At some point this month, maybe next week, maybe even tomorrow, the Supreme Court will decide whether all or parts of the Affordable Care Act, the health care law backed by the White House, is constitutional or not. And for that reason, a man in Oregon named Rocky King isn't sleeping very well. Have you slept in the past two years?

ROCKY KING: Three times.

RAZ: Three times in the past two years.

JULIE ROVNER, BYLINE: One was in February, I think, and then...

RAZ: For the past two years, Rocky King's been Oregon's top administrator in charge of laying the groundwork for the Affordable Care Act. The law requires states to do things like set up online exchanges where insurance companies compete for business. And by January 1st, states are supposed to have a working model up and running. And for Rocky King and his small team...

KING: You sleep, and what happens is you wake up in the middle of the night and you say, did you remember to talk to that person about composite versus tier rating in the group market? You wake up in the middle of the night saying, if they overturn, what are you going to do in terms of moving forward with your staff, the board, the legislature?

So it isn't that you don't sleep. It's that there's an enormous amount of political, administrative and just program kinds of issues that you're constantly thinking about.

RAZ: But there is a possibility that all the work you have done for the past two years will be for naught.

KING: Yep. That is correct.

RAZ: Our cover story today: the future of Obamacare, whether or not the high court throws it out. The last time things got so complicated between the White House and the Supreme Court?

JEFF SHESOL: You really have to go all the way back to 1936 to find a year in which the Court was ready to drop a major decision with major implications for the election right on the eve of that election.

UNIDENTIFIED MAN: If Franklin Roosevelt's first term began at a time of crisis for the country, his second begins at a time of crisis for the New Deal.

RAZ: In his first 100 days in office in 1933, Roosevelt passed 15 pieces of landmark social legislation. Together, they came to be known as the New Deal. But within two years, the Supreme Court began to overturn some of those laws.

SHESOL: The court begins in 1935 to do what one Republican newspaper called throwing this revolutionary nonsense into the Potomac where it belongs. The court really begins to essentially outlaw the New Deal.

RAZ: And it led to a standoff between the White House and the court. And so weeks into his second term in 1937, Roosevelt tried to intimate the justices. The plan was to expand the number of justices from nine to 15. But the plan backfired. The public thought Roosevelt went too far.

Jeff, this court-packing scheme is widely considered by historians as a terrible mistake. So do you see parallels between the relationship that Roosevelt had with his court and the one that President Obama has with this court?

SHESOL: Absolutely. I think what President Obama's facing in this moment is what President Roosevelt faced and, indeed, other progressive presidents have faced as well, and that is that you can get a whole lot done in the political arena. The two branches - the executive branch and the legislative branch - can work together and pass these big programs and make great progress.

But ultimately, there is no way to get around the fact that there is a third branch. And that on matters of the Constitution and therefore on matters of policy, the judiciary has the final word. And presidential pressure on the Supreme Court can very well be counterproductive.

RAZ: That's historian Jeff Shesol. So in the event the whole Affordable Care Act is thrown out or parts of it are thrown out like, say, the part that requires most uninsured Americans to buy health insurance, what's known as the individual mandate, is there a plan B?

Well, the White House denies that there is, but according to NPR's health policy correspondent Julie Rovner if that does happen, it could lead to chaos overnight.

ROVNER: It could indeed be chaos overnight, and it's not just in the states. It could be chaos at the federal level. There is reason to believe - I've talked to experts that the federal Medicare program would have no legal basis to continue paying any of its bills.

RAZ: Wait. Let's wind that back for a moment. We're talking about what's been known - what's been called Obamacare, we'll say, and then the president has actually embraced this.

ROVNER: Yes, he has.

RAZ: You are talking about Medicare, something else. How is Medicare affected if the Affordable Care Act is thrown out by the court?

ROVNER: Every time Medicare puts out a regulation, a payment regulation to pay any kind of health care provider, they have to cite a legal authority. Since 2010, when this law passed, the legal authority that they have cited has been the Affordable Care Act. So, yes. And remember, Medicare pays about 40 percent of the nation hospital bills. So you could have an awful lot of hospitals who wouldn't be getting paid for a period of time, which could affect, not just Medicare beneficiaries, but everybody else who goes to those hospitals.

You could have hundreds of thousands of doctors who wouldn't be getting paid for some period of time. Congress would clearly have to come back in and do something about that.

RAZ: Julie, do we have a sense of how many Americans have been covered under this provision that allows folks under 26 years to be covered by their parents?

ROVNER: The Census Bureau projects it is about two and a half million. There have been other studies that suggest that it could be considerably more than that, and I think it's been by far the most popular provision. In fact, it's one that Republicans are arguing amongst themselves that if the law were to be struck down, that might...

RAZ: They'd want to keep that law.

ROVNER: That might be one that they want to put back.

RAZ: Yeah. Presumably, that would cause a lot of chaos for younger folks who may not have insurance through their companies or - but who are insured under their parents' plan. Overnight, they would no longer be covered.

ROVNER: Yeah. Although it might not be overnight because, remember, it took a while to get them covered because it had to be added through the contracts, the insurance contracts. So it might actually take a little while to un-add them, if you will. There might be other - lots of dislocation. That might not be such an immediate dislocation.

RAZ: We keep hearing about exchanges, these exchanges that would essentially be a marketplace, and they'd be state by state, and all these insurance companies could compete. The idea would be that you'd get a great deal because, like with car insurance, all these companies would be competing for our business, and then you would get a better deal. Those could still happen, right?

ROVNER: Well, it depends. I mean, it depends what the court does. If the court were to take down the entire law, states could come back and enact their own laws to have exchanges. Remember, Utah already has an exchange. Massachusetts, under then-Governor Romney, has an exchange. If the court took it down and states wanted to come back and do their own, that's a possibility.

RAZ: I mean, even without a mandate and even if the whole deal is thrown out, couldn't you have an exchange that could still offer pretty competitive rates even if there was no mandate? Couldn't that work in theory?

ROVNER: There's definitely an argument, and we've seen this over the years, about the idea of simply having rather than individuals going out and buying on their own and small businesses buying on their own, it makes more sense to have a marketplace, if you will, where they can go and have people come together in groups.

The problem in health insurance, however, is that you then have the offsetting problem of people with pre-existing conditions. And that's, again, what will be a real issue if the court is to strike this down. What do you do about people with pre-existing conditions? The trade-off here was that the mandate makes it viable for the insurance industry to cover with - people with pre-existing conditions because they'll have that many more healthy people to offset the cost. If you're not going to have that many more healthy people, are they going to be able to offset the cost? And that's going to be the big question.

RAZ: That's NPR's health policy correspondent Julie Rovner. So what about the idea that Medicare could face a serious challenge if the law were overturned? We ask Tom Miller, a health care economist at the American Enterprise Institute, about that.

TOM MILLER: I don't think so. I think that's assuming a degree of retroactive application, which would not be practical. But in the short term, you're not going to roll back what's already been done in Medicare. So that's not going to create some type of instant crisis. We've got a long-term crisis in Medicare, but it wouldn't be a problem the next year or so.

RAZ: Now, all of these states, as we've been hearing, or many of these states with the exception of states that are challenging - that challenge the Affordable Care Act, are - have actually earnestly been laying the groundwork to prepare their states for what they will have to do, setting up exchanges and all these new provisions that they will have to implement. We just heard from Oregon - from someone in Oregon. He's saying this is going to be a nightmare if this is thrown out because he spent the past two years doing all this stuff.

MILLER: Well, they're quite enthusiastic about doing a lot of things in Oregon. They have other ideas to expand as far as...

RAZ: But there are other states, too, where it was...

MILLER: About a dozen to 15 states have been more enthusiastic or at least we're going to work with this and make it come about. As you know, you can find about another two dozen states, which are very much either flat-out opposed to this or keeping their powder dry.

RAZ: Where they haven't done much.

MILLER: They haven't done much.

RAZ: Of course, if the Affordable Care Act is upheld, the states that have not laid the groundwork, have, you know, as you say, kept their powder dry, they may miss these deadlines, right?

MILLER: Well, the deadlines are going to be missed anyway, but that would be more explicit missing of the deadlines.

RAZ: Is that going to be a problem?

MILLER: Oh, I think that if the administration remains in office in a second term, they will try to implement what would be more of a federally orchestrated replacement for the states that have not acted.

RAZ: And so you're saying it's not going to be chaos.

MILLER: Well, I think the chaos is actually that the exchanges aren't going to be ready for prime time on the date allowed in any case. So all of that would be part of what would be rethought in the event that, first, the law was overturned; secondly, that you had a change in the balance of forces on Capitol Hill and in the White House.

This bill barely got through with a 60-vote margin for hell or high water in the Senate, but it went past what the American people were actually ready to digest and support.

RAZ: Do you have a plan, Tom, from AEI that you think congressional Republicans could back?

MILLER: Possible. It'll be coming out in about two weeks, so I'll certainly have that. You know, that's speculative because what congressional Republicans might be ready to do in the near term, first, it depends on the scenario they're in. If the law is not overturned at all, they're going to be locked in on, well, we're the ones that are going to run up the Hill to suggest how we would repeal this and many other provisions.

In the event that the law is totally overturned, the pressure's on them to produce at least the framework of saying this is what we're campaigning on for this fall and what perhaps a new president would be ready to go with in early that year.

I think that the idea that you're going to have some type of replay of, say, what the Clintons did in 1990 - here's my 13 or 1,400 pages or - you're not going to see that. You have to be able to go to the public with some things they can understand in terms of broad principles and a framework for where they're going to go.

RAZ: One of the things congressional Republicans complained about was how big the Affordable Care Act was, 7,000, 8,000 pages. Is your plan, you know, a one page PDF?

MILLER: No. Well, you always have to have the one - you have to have the one-page executive statement. Otherwise, no one will pay attention to it. But then you end up explaining underneath it as to what the other things are.

RAZ: Lots of footnotes.

MILLER: We should all like to think that we could solve health care with a one-page PDF, but that would also be very unwise.

RAZ: Well, Tom Miller, thanks so much.

MILLER: You're very welcome.

RAZ: Tom Miller, by the way, also wrote a Supreme Court brief in support of overturning the Affordable Care Act.

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